2017 Harvest

Monday, January 31, 2011

Ian Hanna's application for judicial review of wind turbine setbacks in Ontario was heard by a three-judge panel of the Ontario Divisional Court last Monday in Toronto. The Prince Edward County resident has challenged the 550 metre setback under the Green Energy Act regulations. The responding party, the Province of Ontario, believes that the case should be heard by the Environmental Review Tribunal rather than the Court. The Divisional Court panel raised the question with counsel for Hanna, but eventually agreed to hear the case.

The hearing had been scheduled for two days, but was completed in one. The panel indicated that a decision could be expected "soon".

Saturday, January 29, 2011

The case by Ben Berendsen, a Bruce County dairy farmer, against Ontario's Ministry of Transportation (MTO) has settled after 17 years of litigation. In 2008, the Ontario Superior Court of Justice awarded Berendsen $1.7 million in damages related to the effects of contamination left on his farm property by the MTO during a road construction in the 1960's. In 2009, the damages award was set aside by the Court of Appeal. Now comes word that the case has been settled as between Berendsen and the MTO. The hearing before the Supreme Court was to take place yesterday, January 28. The appeal has now been discontinued.

Better Farming has reported on the settlement, though it appears that there must be a confidentiality agreement in place: Books shut on Berendsen case. Neither Berendsen nor the MTO were willing to say much about it.

Friday, January 28, 2011

The City of Thunder Bay entered into an option agreement with Horizon Legacy Energy Corp. for the construction of a wind farm on city property. Although the option included a copy of the lease, it did not specify the exact location of the farm. That was to be worked out between the City and the company. The City had the ultimate power to make the decision, but after City Council turned down the location that had been put forward by the company and endorsed by a City committee, the company commenced a legal action to require that the City comply with the option and locate the farm as requested.

The City brought a motion to the Court asking that the court action be thrown out in favour of arbitration. Under the lease, which the City signed, disputes were supposed to be resolved through arbitration and not in the Courts. However, the Court found that this was not an issue about the lease; it was an issue about the option, which did not include an arbitration clause. On that basis, the Court did not determine the issue of whether the lease could actually be a lease at common law if the location of the leased premises was not defined.

Thursday, January 27, 2011

624798 Saskatchewan Ltd. started a claim in debt for $19,063.09, which includes interest to June 20, 2000, for farm products delivered to farmer Boris Procyk. Procyk defended the action, including by way of a defence of set-off for destruction of the defendant’s canola crop. Procyk first argued that he should not have to pay interest on the debt owing. The Court agreed that there was no agreement to pay interest. Procyk next argued the set-off, claiming that some of the spray supplied to him by the Plaintiff damaged his canola crop. The Court found that the Plaintiff had, in fact, supplied the wrong product to Procyk. In the end, the debt owing by the Plaintiff was reduced to just under $5,500.

Wednesday, January 26, 2011

William and Heiderose Graw and Lorne Rockwell own adjacent forested acreage in Chilliwack, B.C. Rockwell trespassed onto the Graw property, cut down several large, mature Maple trees, as well as other smaller trees, cleared the underbrush, levelled the landscape within the approximately 690 square metre area, and created a twelve foot wide skid trail. Rockwell acknowledged the trespass and attempted to negotiate appropriate compensation and remedial measures with the Graws. When their dispute could not be resolved informally, the Graws commenced an action for damages arising out of the trespass.

The Court found the defendant’s trespass amounted to gross negligence. The defendant’s entry onto the plaintiffs’ property was a culpable trespass. Had the defendant taken the most basic precautions before cutting the trees and clearing the land, there would have been no trespass and no consequential damages. On a continuum of culpability, the Court found the defendant’s actions were closer to a deliberate, wilful act than to an unintentional accident. It was also apparent that the trespass caused more than nominal damage to the plaintiffs’ property. Thus, a more severe or wide ranging measure of damages was appropriate.

There was no dispute that the plaintiffs were entitled to damages representing the value of the timber taken by the defendant. The parties’ dispute centred upon the monetary value of the trees and whether the cost of harvesting the timber should be deducted. In the Court's view, the plaintiffs’ evidence of the value of the timber was preferable to the estimate provided by the defendant. Even if the defendant only received $300 for the trees, the plaintiffs were entitled to the actual value of the logs and should not be penalized if the defendant sold them for far less than fair market value. In addition, the defendant’s estimate only included a value for the Maple trees.

The Court was also satisfied that the cost of harvesting the timber should not be deducted from the damages awarded to the plaintiffs. The plaintiffs had no intention of harvesting these trees and are faced with the task of restoring the area. The authorities support no deduction for harvesting costs when the defendant’s trespass was culpable. Lastly, the defendant carried out the work himself and did not provide the court with any evidence of his labour costs.

The Court ruled that the plaintiffs were entitled to the reasonable costs of restoring the affected area as of the date of the trespass, subject to their duty to mitigate and awarded the plaintiffs $5,875 for the costs of restoring the affected area. The Court also awarded $2,125 for the value of the timber taken and $2,000 for loss of use and enjoyment of the land.

Tuesday, January 25, 2011

One neighbour (the Prosecutor, Neighbour 1) and another neighbour and her mother (collectively referred to as the Defendant, Neighbour 2), have lived side by side for over 25 years. For much of that period, the families lived in harmony as neighbours. In 2003 or 2004 for a variety of reasons, the friendship ended with the two neighbours feuding constantly, becoming bitter enemies. Both sides turned to the police, to other neighbours, and the Courts to help resolve their disputes. Despite mediation attempts by the police services and the Courts, the two remain locked in an adversarial relationship and affirm nothing more than to be left in peace and free from any communication with each other. Neither party wished to move from their residence. Despite the Court’s invitation to resolve matters in an amicable fashion, neither wished to deal with their matter outside of a trial. The acrimony continued and eventually manifested itself as a dispute over respective property rights and disagreements about shared property line activities.

Ultimately, Neighbour 1 launched a Private Prosecution as an unrepresented prosecutor operating under the advice given to her from the Municipality under the jurisdiction of the By-Law 172-2006. Her position was that she had proven beyond a reasonable doubt that Neighbour 2 offended By-Law 172-2006 (related to fencing) and she asked the Court to render a conviction on behalf of the Municipality in order to compel the Defendant to pay for their 50% share of the total cost of a fence Neighbour 1 had installed on what she says is the property boundary along with any penalties that the Court sees fit to impose. She had installed the fence and then demanded payment from her neighbours, failing which she would launch a "court action".

Procedurally the carriage of Private Prosecutions under the Provincial Offences Act is similar to the Criminal Courts where an individual may swear an Information charging another entity with an Offence. Following an ex parte hearing on the matter, a Justice being satisfied that some evidence is received on all essential elements may refer the matter to a set date court at which point the Provincial Crown will decide whether or not to take carriage of the charge. In some instances where the Crown deems no merit in proceeding with a prosecution, the Crown sometimes will take carriage and then act under its jurisdiction to ask the Court to stay the charge or to withdraw the charge. When the Crown makes the determination not to be involved, then the Informant has the option of continuing with the Prosecution or it may abandon it. Normally, the Crown will make such an assessment on the merits of the case and on the evidence taken in order to decide whether or not they wish to be involved. Each case is assessed on its own merits.

Even though unrepresented, it appears from the comments made by Neighbour 1 along the way, that she had been receiving advice on how to conduct her case from the Municipality. Additionally, she was given the requisite By-Law and a copy of the recommended procedures to follow as well as sample letters to send out to the other party. The Court wondered if this assistance could be perceived by some private residents as sometimes crossing the line between procedural assistance and legal advice.

In the end, the Court found that Neighbour 1 had not proven beyond a reasonable doubt that the Defendant had violated the by-law and entered an acquittal.Read the decision at: Private Prosecution.

Monday, January 24, 2011

WINDSOR – On November 17, 2010, Belwood Poultry Limited pleaded guilty to one violation under the Environmental Protection Act for depositing waste on land that was not an approved waste disposal site.

The Court heard that the company is located in Amherstburg. The company did not have ministry approval to operate equipment for the transportation or the disposal of sewage waste to any of their properties. On February 21, 2008 a Provincial Officer conducted an inspection of the company site and found that waste was being transported to a company property to be spread on fields without ministry approval. The Provincial Officer instructed the company to cease the activity.

The company was charged following an investigation by the ministry’s Investigations and Enforcement Branch. The company was fined $20,000 plus a victim fine surcharge ($5,000) and was given one year to pay the fine.

Saturday, January 22, 2011

The Canadian Association of Farm Advisors has published its 2nd annual edition of the Cultivating Business magazine, which includes a directory of CAFA farm advisors across Canada. Click on the cover to access the full document.

Friday, January 21, 2011

The Supreme Court of Nova Scotia recently decided a case involving a petition by one landowner in Halifax for a private right of way over the land of a neighbour. The petition was made to the municipality under the Private Way Act (PWA). The neighbours asked the Court to find that there was no jurisdiction in the municipality to consider the petition and grant the right of way, as to do so would constitute an expropriation (requiring that steps be taken under the applicable expropriations legislation).

While the Court understood that the PWA may have significant consequences for affected landowners, it noted that there are procedural protections and a means of compensation built into the PWA. Moreover, in spite of those potentially significant consequences, the Court did not conclude that the process under the PWA constitutes “expropriation” as contemplated by the Expropriation Act. Therefore, the Court declared that as a matter of law in Nova Scotia, Part 2 of the PWA is operative legislation, and any Municipal Council petitioned for the “obtaining and laying out of a private way or road” may properly consider the petition as per the provisions of the PWA.

Thursday, January 20, 2011

The Crown appealed the acquittal of James Muhlbach (Muhlbach) of a charge laid under the Animal Protection Act, R.S.A. 2000, c. A-41 (the Act) for mistreating cattle on his farm near Stettler, Alberta. Muhlbach owns and operates a cattle farming operation, and in 2007, the Alberta Society for the Prevention of Cruelty to Animals (ASPCA) investigated various concerns about cattle treatment on the Muhlbach farm. As a result of those investigations, Muhlbach was charged with one count of permitting animals to be in distress contrary to sec. 2(1) of the Animal Protection Act.

According to the Court of Queen's Bench on appeal, in order for the Crown to have been successful in convicting Muhlbach of the charge, it had to prove, beyond a reasonable doubt, the actus reus of the offence that Muhlbach caused or permitted an animal or animals to be in distress. The nature of this charge is quasi-criminal requiring the higher standard of proof, beyond a reasonable doubt, or as the Trial Judge put it, the criminal standard of proof. Given that the charge is strict liability, the Crown is not required to prove the mental element of the offence, but Muhlbach is entitled to a raise a defence of due diligence. This defence is described in the Act at s. 2(2) as:

This section does not apply if the distress results from an activity carried on in accordance with the regulations or in accordance with reasonable and generally accepted practices of animal care, management, husbandry, hunting, fishing, trapping, pest control or slaughter. [emphasis added]

Muhlbach lead a defence of due diligence. He claimed and lead evidence that his practices were in accordance with reasonable and generally accepted practices of care of cattle. Muhlbach had only to prove this on a balance of probabilities to raise a reasonable doubt. The Trial Judge found that Muhlbach had successfully made out that defence and acquitted him. On appeal, the Court of Queen's Bench found that the acquittal was reasonable:

To say that the Trial Judge’ acquittal was unreasonable is to say that his conclusions did not fit with the evidence put before him. That cannot be said in this case. It is clear from my review of his oral decision that he was alive to the requirements and standards of proof under the Animal Protection Act, that he considered the evidence carefully, and that he applied the evidence to the test in a reasoned way. Therefore, it cannot be said that the acquittal verdict was unreasonable.

Wednesday, January 19, 2011

Last February, I wrote a post about a Divisional Court decision that overturned a decision of the Normal Farm Practices Review Board involving a former oil refinery site (Normal Farm Practices Board decision overturned by Divisional Court ). Why would normal farm practices be an issue for a former refinery site? In the view of the municipality involved, the owners of the development land were attempting to circumvent municipal zoning laws and avoid non-agricultural property tax rates by using the land for agricultural purposes. The Ministry of the Environment had earlier restricted the use of the .and to industrial or commercial use. Read Farms, the tenants on the 400-acre parcel of land, were growing cash crops.

Read Farms appealed the Divisional Court ruling to the Court of Appeal, unsuccessfully. Both the Divisional Court appeal and the appeal before the Court of Appeal determined that the Normal Farm Practices Protection Board did not have the authority in this case to invalidate or overrule the zoning by-law of the Town of Oakville which prohibited the use of the Read Farms land for farming purposes. As the Court of Appeal wrote:

Therefore, when s. 6(1) [of the Farming Practices Protection Act, R.S.O. 1990, c. F-6] is read in conjunction with the preamble and other provisions of the Act, it is readily apparent that the Board only has jurisdiction to consider the applicability of by-laws to normal farming practices that are carried out on agricultural lands. The Act does not permit circumvention of legitimate municipal planning regarding the land use designations of various lands.

Tuesday, January 18, 2011

The Ontario Ministry of the Environment has the ability to charge fees for Renewable Energy Approval applications under the Environmental Protection Act. These fees will be established through a Minister’s Order and are therefore exempt from public posting under the Environmental Bill of Rights, 1993. However, to ensure clarity and transparency for the regulated community and the general public and for consistency with the Ministry of Economic Development and Trade’s Business Registry and the Environmental Registry, the Ministry of the Environment is posting the fees and associated refunds for different classes of Renewable Energy Approvals on both Registries.

The Green Energy and Green Economy Act, 2009 was passed in the Legislature on May 14, 2009. The Act places priority on expanding Ontario’s use of clean and renewable sources of energy, including wind, water, solar, biomass and biogas power. As a key pillar in supporting the development of Ontario’s green economy, on September 24, 2009 the Ontario government introduced O. Reg. 359/09 (Renewable Energy Approvals under Part V.0.1 of the Environmental Protection Act. This regulation offers an approach to regulating renewable energy generation facilities that is based on transparency and clear, up-front provincial rules designed to ensure that the environment and human health are protected.

The Renewable Energy Approval simplifies the number and types of approvals required for new renewable energy projects, integrating environmental, health and safety matters previously dealt with by a number of provincial, municipal and proponent-driven processes into one process. Previous approvals processes had associated fees; e.g. the Ministry previously charged fees for Certificates of Approvals for renewable energy projects before the introduction of the Renewable Energy Approval in September 2009. In addition, the Renewable Energy Approval incorporates analysis of information that must be reviewed by other ministries (e.g. natural heritage assessments) and feedback from the mandatory municipal consultation requirements (e.g. site planning).

The Ministry has committed to a six month service guarantee for reviewing and providing a decision on complete applications. The six month service guarantee provides certainty for proponents, reduces proponents’ opportunity costs, and reduces Ministry approval times.

Purpose of the Notice:

The purpose of this notice is to ensure that industry and the public are made aware of the Renewable Energy Approval fees before they take effect on March 15, 2011.

The Ministry has the ability to charge fees for Renewable Energy Approval applications under the Environmental Protection Act. Section 179.1 of the Environmental Protection Act states that, “the Minister may establish and require a payment of fees in respect of any matter under this Act”. A Minister’s Order will be issued imposing the fees and associated refunds for different classes of Renewable Energy Approvals.

Who pays Renewable Energy Approval fees?

Only entities, companies or individuals, who want to engage in a renewable energy generation project, as defined in Section 47.3 of the Environmental Protection Act are subject to the Renewable Energy Approval and associated fees.

Some types of smaller renewable energy projects are not subject to the Renewable Energy Approval, or the fee. These projects include

Roof-top and building mounted solar PV;

Ground-mounted solar PV under 12 kilowatts;

Wind turbines under 3 kilowatts;

Regulated anaerobic digestion facilities;

Farms with an approved Nutrient Management Strategy that would not have required a Certificate of Approval under the old approvals systems.

How were Renewable Energy Approval fees developed?

The fees have been set to help recover the province’s costs to manage the Renewable Energy Approval program while encouraging renewable energy development. The Renewable Energy Approval fee represents the estimated cost to the Ministry to review a Renewable Energy Approval application. The fees are based on staff time required to review the application for completeness and conduct a technical review associated with each class of Renewable Energy Approval.

The Renewable Energy Approval fees have attempted to balance cost-recovery with the development of the renewable energy sector by creating fee classes and capping the Renewable Energy Approval fee for small-scale and farm-based projects, including:

A Renewable Energy Approval applicant would be eligible to receive a partial refund if the Renewable Energy Approval application is not formally accepted for a technical review. If the application is returned to the applicant because it is considered incomplete, the application will be returned with a refund based on the Renewable Energy Approval class.

Refunds are not applicable to the following small and farm-based facilities as the cost to review an application for a technical review exceeds the Renewable Energy Approval fee:

Monday, January 17, 2011

Last August, I wrote about a Drainage Act decision of the Agriculture, Food and Rural Affairs Tribunal in which a landowner was hit with a $10,000 cost order after failing to show up for the hearing (landowner boycotts drainage hearing). The landowner, Richard Gosselin, applied for a review of the Tribunal's decision (by the Tribunal itself). All aspects of the landowner's review application were dismissed. With respect to the $10,000 costs award in favour of the municipality, the Tribunal wrote the following:

The Tribunal appropriately considered all of the circumstances prior to making its award of costs against the Appellant. If the Appellant had attended the hearing, he could have spoken to the issues of cost and provided testimony in response to the Township's submissions on costs. Further, the Rules clearly state that failing to attend a hearing constitute circumstances amounting to bad conduct. The Appellant, prior to refusing to attend the hearing, ought, or should have known that the failure to attend may result in an adverse cost award pursuant to Rule 28.04. Further, on June 10, 2010 the Appellant attempted to circumvent the Tribunal's processes and procedures by: writing panel members directly; failing to comply with the Tribunal's interim Order of May 28, 2010; and requesting numerous adjournments absent providing any evidence in support of the request.

The Municipal Engineers Association has submitted changes to its Municipal Class Environmental Assessment, which comprise three main components:

Enhancement and clarification to the Integration Provisions for improved efficiencies and ease of use.

Revised project schedule definitions.

Other housekeeping amendments.

Integration Provisions

By combining environmental assessment and land use planning requirements into a single process, proponents of municipal projects can streamline their efforts and more effectively meet legislative requirements. Clarification of the integration provisions are being proposed to ensure that the provisions are understandable and can be used effectively by project proponents.

The Municipal Engineers Association’s proposed amendments regarding the integration provisions of the Municipal Class Environmental Assessment Class Environmental Assessment are a result of solutions developed as part of the Ministry of Economic Development and Trade’s Ontario’s Open for Business round table with the Building Industry and Land Development Association (BILD).

Schedule Definitions

Modifications to the project Schedule definitions have been proposed based on consultation with project proponents and ongoing process monitoring by MOE and the Municipal Engineers Association. The key changes include:

Modifications for 40 year old structures.

Local projects redefined as Schedule A.

Minor projects with follow up approvals redefined as Schedule A+.

Consultation in the form of workshops and survey questionnaires were used to gather feedback on the proposed changes from proponents using the Class Environmental Assessment.

Consultation and monitoring also identified the need for minor amendments to some definitions.

This notice will be updated as new information becomes available.

Public Consultation:

The purpose of this notice is to:

advise the public that the Municipal Engineers Association (proponent) has submitted to the MOE its proposed amendments; and,

provide and inform the public of the opportunity to submit comments on these amendments.

Comments will be accepted until February 25, 2011 and can be submitted to EAABGen@ontario.ca or by mailing their comments to:

Thursday, January 13, 2011

Enbridge Gas Distribution Inc. is going back to trial on Occupational Health and Safety Act charges related to the Bloor Street natural gas explosion in 2003 that killed seven people. The Ontario Court of Appeal has denied Enbridge's application for leave to appeal an earlier decision by the Superior Court which ordered a new trial in the case. Justice Watt summarizes the facts:

The Preliminaries

[17] Warren asked Enbridge to identify and mark its underground natural gas pipelines in the area involved in the reconstruction before Warren began excavation. Enbridge contracted with PUL to provide the necessary information for Warren. PUL assigned one of its employees to locate and mark Enbridge’s pipelines in the area affected by the reconstruction.

[18] The PUL employee assigned the task of locating and marking Enbridge’s pipelines in the area affected by the reconstruction neither identified nor marked a three-quarter inch pipeline into the commercial plaza at 3885-3891 Bloor Street West.

The Accident

[19] Warren’s backhoe operator inadvertently struck Enbridge’s unmarked pipeline into the plaza. The displacement dislodged the pipe from its fitting attached to the outside wall of the plaza. An unregulated flow of natural gas escaped into the basement of the plaza.

[20] About six to nine minutes after the pipe had become dislodged, an unknown source of ignition caused the gas to explode. The blast levelled the plaza. The force of the explosion and the ensuing fire damaged or destroyed several structures nearby. Seven people were killed, several more injured.

Tuesday, January 11, 2011

The Canada Agricultural Review Tribunal has imposed several $500 administrative monetary penalties on a Manitoba farmer named Gordon Kropelnicki. The penalties result from a breach of the health of animals regulations administered by the Canada Food Inspection Agency (CFIA). In particular, Kropelnicki was alleged to have failed to retire the tag numbers of several cattle there were exported to the United States in 2009.

On March 16 and 17, 2009, Kropelnicki exported 33 cattle to the United States via Pembina, North Dakota. In August, 2009, Kropelnicki received a letter of warning sent from the CFIA stating that three of the cattle he had transported to the United States had not had their identification tag retired within 30 days of their export. The warning letter said that the farmer must bring himself into compliance with the section by retiring the tags no later than September 15, 2009. Kropelnicki took no steps on his own to retire the tags. Instead, Kropelnicki says that he called the veterinarian clinic in Glenboro on August 29 or 30, 2009 to have them retire the tags and that the clinic said that they would do so. However, the clinic did not retire the tags.

According to the chairperson of the Appeal Tribunal, Dr. Don Buckingham, the “undeniable facts” of the case are:

That Kropelnicki shipped his cattle to the U.S.A. and their tag numbers were not retired on or before September 15, 2009. The Tribunal has no reason to doubt that Kropelnicki fully relied on the Glenboro clinic to carry out his wishes and to protect his interests by retiring the tag numbers of the cattle exported to the U.S.A. It is clear that Kropelnicki took some preliminary steps to have the tags retired to meet his obligations and the agency’s August request. Unfortunately for whatever reason, the retirement of the tags did not occur prior to September 15, 2009.

In his decision, Buckingham notes that Section 18 of the applicable legislation excludes practically any excuse that Kropelnicki might raise in the case. Given Parliament’s clear statement on the issue, Buckingham accepted that due diligence statements by Kropelnicki are not permitted defences under the applicable legislation. Moreover, reliance by Kropelnicki on individuals who are acting as his agents in the export transaction to the U.S., is not a defence to the violation alleged in the case.

In light of those findings, the Tribunal rejected the appeal and imposed the administrative monetary penalties required under the leglislation.

Monday, January 10, 2011

Monsanto's patent on the original Roundup Ready soybean technology expires in August, 2011. The company has started a publicity campaign designed to warn farmers off the use of 2011 Roundup Ready seed in future years. On the website posted specifically to deal with the patent expiry, Monsanto provides a booklet called A Guide to Roundup Ready Soybean Patent Expiry.

Saturday, January 8, 2011

The U.S. National Commission on the BP Deepwater Horizon Oil Spill and Offshore Drilling has released an advance chapter from its report on the BP Disaster. Of particular note for Canadians is the report section dealing with regulatory failures by the former Minerals Management Service (MMS), which played a multi-function role similar to that of the National Energy Board (NEB) in Canada. The NEB, like the National Commission in the U.S., is currently undertaking a review of the possibility of offshore drilling in Canada's North. It remains to be seen whether anyone in Canada looks into the risk of regulatory failures in the NEB's oversight of environmental protection and safety in Canada's oil and gas industry. Weak regulations combined with lax oversight leaves open the probability that major disasters will continue to occur.

Here's the section from the National Commission report on the MMS failure:

Regulatory Failures

Government also failed to provide the oversight necessary to prevent these lapses in judgment and management by private industry. As discussed in Chapter 3, MMS regulations were inadequate to address the risks of deepwater drilling. Many critical aspects of drilling operations were left to industry to decide without agency review. For instance, there was no requirement, let alone protocol, for a negative-pressure test, the misreading of which was a major contributor to the Macondo blowout. Nor were there detailed requirements related to the testing of the cement essential for well stability.

Responsibilities for these shortfalls are best not assigned to MMS alone. The root cause can be better found by considering how, as described in Chapter 3, efforts to expand regulatory oversight, tighten safety requirements, and provide funding to equip regulators with the resources, personnel, and training needed to be effective were either overtly resisted or not supported by industry, members of Congress, and several administrations. As a result, neither the regulations nor the regulators were asking the tough questions or requiring the demonstration of preparedness that could have avoided the Macondo disaster.

But even if MMS had the resources and political support needed to promulgate the kinds of regulations necessary to reduce risk, it would still have lacked personnel with the kinds of expertise and training needed to enforce those regulations effectively. The significance of inadequate training is underscored by MMS’s approval of BP’s request to set its temporary abandonment plug 3,300 feet below the mud line. At least in this instance, there was a MMS regulation that potentially applied. MMS regulations state that cement plugs for temporary abandonment should normally be installed “no more than 1,000 feet below the mud line,” but also allow the agency to approve “alternate requirements for subsea wells case-by-case.”173 Crucially, alternate procedures “must provide a level of safety and environmental protection that equals or surpasses current MMS requirements.”

BP asked for permission to set its unusually deep cement plug in an April 16 permit application to MMS.175 BP stated that it needed to set the plug deep in the well to minimize potential damage to the lockdown sleeve, and said it would increase the length of the cement plug to compensate for the added depth. An MMS official approved the request in less than 90 minutes.176 The official did so because, after speaking with BP, he was persuaded that 3,000 feet was needed to accommodate setting the lockdown sleeve, which he thought was important to do. It is not clear what, if any, steps the official took to determine whether BP’s proposed procedure would “provide a level of safety . . . that equal[ed] or surpass[ed]” a procedure in which the plug would have been set much higher up in the well.

MMS’s cursory review of the temporary abandonment procedure mirrors BP’s apparent lack of controls governing certain key engineering decisions. Like BP, MMS focused its engineering review on the initial well design, and paid far less attention to key decisions regarding procedures during the drilling of the well. Also like BP, MMS did not assess the full set of risks presented by the temporary abandonment procedure. The limited scope of the regulations is partly to blame. But MMS did not supplement the regulations with the training or the processes that would have provided its permitting official with the guidance and knowledge to make an adequate determination of the procedure’s safety.

Wednesday, January 5, 2011

The Open for Business Act, 2010 (Bill 68) received Royal Assent on October 25, 2010 and came into force on October 25, 2010 upon proclamation of the Lieutenant Governor. According to the government, the amendments to the Drainage Act in the Open for Business Act provide clarity, remove duplication and simplify processes that will result in time savings for stakeholders. The proposed changes to the Drainage Act could result in approximately $1.1 million in savings to municipalities through reduced administrative costs.

Comment(s) Received on the Proposal: 6

Public Consultation on the proposal for this decision was provided for 30 Days, from July 06, 2010 to August 05, 2010. As a result of public consultation on the proposal, the Ministry received a total of 6 comments: 4 comments were received in writing and 2 were received online.Effect(s) of Consultation on this Decision:

In July, 2010, OMAFRA posted the proposed amendments on the Environmental Registry. In response to the post, four submissions were received from various parties during the posting period. Two other comments were also received after the posting had been closed but were still considered.

1. Amending the Drainage Act

The majority of comments approved of amending the Drainage Act for the sake of clarity, removing duplication and simplifying processes. Several comments called for a more extensive amendment of the Drainage Act.

Response:

The Ministry is pleased that the stakeholders who commented support the Open for Business initiative to amend the Drainage Act. Comments concerning the need for a comprehensive review of the Drainage Act were noted, but such a review is outside of the scope and purpose of Bill 68.

2. Removal of the Pollution Prohibition (Section 83)

Two submissions were in favour of removing section 83 as they felt that section 83, a section which prohibits the pollution of drains, lacked enforcement power and was not used. Moreover, they felt that pollution was more effectively addressed through other pieces of legislation such as the Environmental Protection Act and the Water Resources Act.

Others expressed concern over the removal of section 83 from the Drainage Act. It was felt that the presence of the section still had value simply as a reminder of our responsibilities toward the environment.

Response:

The ministry believes there are more effective tools to communicate the responsibility to protect water resources to those in the industry than a section in a statue that is infrequently read by the public. The ministry currently employs many of these, including the award-winning Best Management Practice booklets and Environmental Farm Plan, a number of fact-sheets and presentations to stakeholders.

Further, the local municipality assigns their responsibility for the management of municipal drains to their drainage superintendents. All drainage superintendents must attend a five day course prior to being authorized to serve as a drainage superintendent. Through this course, they are educated about their environmental obligations when performing their work. Drainage superintendents are fully aware that when they encounter polluting connections into municipal drains, they must report to the local office of the Ministry of the Environment.

Striking section 83 from the act does not change the legislative fact that drainage works constructed under the Drainage Act are subject to other legislation such as the Conservation Authorities Act, the Ontario Water Resources Act and the Fisheries Act.

3. Scope of Open for Business Amendments

The majority of submissions called for a number of other amendments or even a comprehensive updating to be made to the Drainage Act. Some wished to see environmental appraisals be added as a mandatory requirement under the act.

Response:

These comments have been noted, but all of these sorts of suggested changes would have a significant impact on rural municipalities and the agricultural industry and are therefore beyond the scope of Bill 68.

Some of the comments registered on the EBR can be viewed at: Public Comments.

Tuesday, January 4, 2011

Partnering to Further Enhance Pipeline Safety In Communities Through Risk-Informed Land Use Planning

Final Report of Recommended Practices

November 2010

The U.S. Department of Transportation has released a report prepared by the Pipelines and Informed Planning Alliance (PIPA) on the subject of "risk-informed" land use planning around pipelines. The Report notes that fixed setback requirements from pipeline easements may not be appropriate in all cases. However, it is accepted that pipelines may pose risks that impact people and property beyond the edge of the pipeline easement or right-of-way:

Transmission pipeline failures present risks that may impact people and property beyond the edge of pipeline rights-of-way (ROW). To address these risks, some communities have imposed zoning restrictions, including fixed-distance building setbacks for development along transmission pipeline ROW. Building setbacks are typically used by local governments to provide separation between the community and potential risks, in this case pipelines. However, fixed-distance setbacks commonly don’t consider the risks involved with a specific pipeline and the physical environment in which the pipeline operates. Individual transmission pipelines differ in character – some are large-diameter, high-pressure, cross-country pipelines traversing mostly rural areas, while others are located in urban areas and densely-populated urban centers. Transmission pipelines operated within urban areas may be located underneath public streets and roadways in areas that are already well-developed. Federal regulations attempt to mitigate the risk of transmission pipelines located in more densely-populated areas by imposing more stringent requirements. For example, gas transmission pipelines located in heavily populated urban areas are generally required to adhere to additional design, operation, and maintenance requirements. However, each situation is unique relative to the pipeline characteristics and the areas surrounding the pipeline ROW. Thus, PIPA recommends that implementing a risk-informed approach to land use planning and development and establishing good communication with the transmission pipeline operator is more appropriate than establishing a fixed-distance setback to be applied in all situations.

One thing seems clear from the report - risks posed by pipelines are of growing concern to governments in the United States. The manner in which the risks are addressed and managed will have an effect on landowners and land values. Where measures are imposed to ensure the safety of aging and deteriorating pipelines, the effect is likely to be a restriction of the uses that can be made of a property and a subsequent loss in property value. Can landowners be compensated for this loss of property value that would not likely have been considered in setting compensation at the time a pipeline company acquired its land rights? Apart from mentioning that a pipeline company may wish to obtain additional rights from a landowner in exchange for additional compensation, the Report does not address the issue of compensation for risk management-associated land use and development restrictions.

Monday, January 3, 2011

The State of Michigan Department of Natural Resources and Environment has sued Noll Dairy Farm Inc. and Nevin and Heather Wenger (doing business as "Back Country Manure Management Co.") over a fish kill that occurred in August of 2009 in the Black River. Officials have previously stated that manure ran off from a Noll Dairy field into a tributary of the river after an allegedly excessive application by Back Country. The result was a fish kill of over 200,000 (including smallmouth bass, catfish, northern pike, rock bass, sunfish, suckers and minnows) over a 12-mile run of the river. The law suit launched seeks "compensation to the State of Michigan for natural resource damages", including loss of public resources, loss of recreational opportunities and the costs of rehabilitation of the Black River and its tributaries.

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John D. Goudy, Lawyer

John is a litigator whose practice is focused in the areas of commercial and environmental litigation, expropriation law, energy regulation, and regulatory offences. He is particularly interested in agricultural issues and the regulation of agricultural land use, and lives and works on his family’s cash crop farm north of London, Ontario with his wife and three kids.

ACI Published Author

Law of the Lands provides legal information of interest to landowners. If you require legal advice about your particular situation, please click on John's profile for contact information or visit scottpetrie.com.